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Talley v. Brentwood Union Free School Dist.

August 4, 2010

KIERA TALLEY, PLAINTIFF,
v.
BRENTWOOD UNION FREE SCHOOL DISTRICT, (DRH) (ETB) BRENTWOOD BOARD OF EDUCATION, MICHAEL COHEN, IN HIS CAPACITY AS SUPERINTENDENT OF THE BRENTWOOD UNION FREE SCHOOL DISTRICT, GALE KIRKHAM, IN HER INDIVIDUAL CAPACITY AND AS A MEMBER OF THE BOARD OF EDUCATION FOR THE BRENTWOOD SCHOOL DISTRICT, TOMAS DEL RIO, IN HIS INDIVIDUAL CAPACITY AND AS A MEMBER OF THE BOARD OF EDUCATION FOR THE BRENTWOOD SCHOOL DISTRICT, AND JOSEPH FRITZ, IN HIS INDIVIDUAL CAPACITY AND AS A MEMBER OF THE BOARD OF EDUCATION FOR THE BRENTWOOD SCHOOL DISTRICT, RESIDENTS FOR BETTER SCHOOLS OF BRENTWOOD AND NORTH BAY SHORE, NEW YORK, INC., A NOT-FOR-PROFIT ORGANIZATION, AND HELEN MOSS, IN HER INDIVIDUAL CAPACITY. DEFENDANTS



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Plaintiff Kiera Talley ("Plaintiff") commenced this action alleging violations of "(1) 42 U.S.C. § 1983; (2) 42 U.S.C. § 1985; (3) 42 U.S.C. § 1986; (4) the First Amendment of the United States Constitution . . .; (5) substantive due process rights and equal protection of the laws of the Fourteenth Amendment of the United States Constitution"; as well as New York State constitutional and statutory violations and common law causes of action. (Amended Complaint ¶ 1.)*fn1 By Memorandum & Order dated June 24, 2009, familiarity with which is presumed, the Court ruled as follows on the motion to dismiss of defendants Brentwood Union Free School District (the "District"), Brentwood Board of Education ("Board"), Michael Cohen ("Superintendent Cohen"), Gale Kirkham ("Kirkham"), Tomas Del Rio ("Del Rio") and Joseph Fritz ("Fritz") (collectively "District Defendants"): (1) dismissed all claims against Superintendent Cohen; (2) denied the motion to dismiss the First Amendment claim; (2) dismissed the substantive due process claim; (3) dismissed the §§ 1985 and 1986 conspiracy claims; (4) dismissed the class of one Equal Protection claim; (5) dismissed the Equal Protection claim based on race against Del Rio and Fritz (but not as to Kirkham). Presently before the Court is a motion by Fritz, Del Rio, and Kirkham to dismiss the First Amendment claim and the remaining Equal Protection claim on the basis of qualified immunity. Also before the Court is Plaintiff's motion to amend the complaint to reassert the §§ 1985 and 1986 conspiracy claims against Del Rio, Fritz, Kirkham, and Cohen. For the reasons set forth below, the motions are denied.

Background

The following allegations are taken from the amended complaint ("AC"): Plaintiff, who is Caucasian, is the daughter of George M. Talley. George Talley became a member of the Board in 2004 and in or about May 2006 was elected its president. (AC ¶¶ 17, 18, 21, 28.) "In or about July 2007, [Plaintiff] passed the last installment of her certification test, a necessary condition to a continued teaching position with any school district. As of July 2007, [Plaintiff] was fully certified as a teacher in New York State." (AC ¶ 29.) "In or about July 2007," Plaintiff was offered a "probationary contract"*fn2 for a special education teaching position by Superintendent Cohen pending approval by the Board.*fn3 She accepted the offer and began teaching at the start of the 2007-2008 school year. (AC ¶¶ 31-32.)

"[W]ith the beginning of the 2007-2008 school year, tension mounted between the [] Members of the Board, including [Plaintiff's] father." (AC ¶ 35.) "[T]he Board was divided on many issues and three of the members, Kirkham, Del Rio, and Fritz, called for the resignation of George Talley, due to disagreements with the way in which he cast his votes as a board member." (AC ¶ 36.)

The Board's vote on Plaintiff's probationary contract was scheduled for September 18, 2007. The District has a nepotism policy which provides that "family members of the Board must obtain five out of seven votes in order to receive employment, as opposed to four out of seven votes for teachers unrelated to Board members." (AC ¶¶ 37, 39.)*fn4 Thus, Plaintiff's probationary contract needed to be approved by five members of the Board. Plaintiff's probationary contract was not approved, however, as Kirkham, Del Rio and Fritz abstained from voting. Apparently as a result of the non-approval of her probationary contract, "[d]uring the next pay period and without notice, [P]laintiff was demoted to a substitute teaching position, reducing her compensation significantly and denying her all benefits she had previously received." (AC ¶ 41.)

Approval of Plaintiff's probationary contract was again placed on the Board's agenda for the October 3, 2007 meeting. "Five administrators appeared at the October 3, 2008 [sic] meeting to speak on [Plaintiff's] behalf." Kirkham, Del Rio, and Fritz failed to attend the October 3, 2007 meeting. (AC ¶¶ 43-45.)

Approval of Plaintiff's probationary contract was then placed on the Board's agenda for October 20, 2007. "Kirkham, Del Rio, and Fritz abstained from voting on [Plaintiff's] probationary contract, thereafter terminating her employment with the [District]." (AC ¶ 46.) Talley then took the microphone to inquire from the Board as to the reasons for her termination and was "spoken to in a demeaning fashion by Board Members and was publicly yelled at, humiliated and embarrassed." (AC ¶ 48.) When she inquired of the Board whether they thought she was qualified for the position, Kirkham smartly responded "if you say you are, then I guess you are." Kirkham stated that [Plaintiff] was terminated for "personal reasons." . . . Del Rio responded to the same qualification question - "ask your father." At the same meeting, Kirkham stated on the record that there should be more "minority teachers" teaching in [the District] as it is a minority district. . . . Kirkham [who is alleged to be Black] is widely known in the district as advocating for more minority teachers to fill positions within the [District]. Kirkham and Del Rio [who is alleged to be Hispanic] also stated at that meeting that [George] Talley did not vote for Helen Moss' daughter when she was being considered for a teaching position in [the District], in connection with the discussion about [Plaintiff.] (AC ¶¶ 49-53.)

Plaintiff claims that Kirkham, Del Rio, and Fritz terminated her in retaliation for associating with her father, that they "opposed" her father and "conspired to deny his daughter, [Plaintiff], a permanent position with the [District]." (AC ¶ 55.) She also claims that Superintendent Cohen "knew of the conspiracy, but failed to prevent it although he had the power to do so . . . ." (AC ¶¶ 54-56.) She further claims that due to her relationship with her father, the Board treated her unequally to other teachers in violation of the Equal Protection Clause. (AC ¶ 57.)

Plaintiff alleges that following the September 18 and October 20 Board meetings, "Kirkham, Del Rio, and Fritz spoke to Newsday about the circumstances surrounding [Plaintiff], her denial of appointment, damaging her professional reputation and embarrassing her intentionally. [Plaintiff] was directed not to speak to the press." (AC ¶¶ 58-59.)

According to the Amended Complaint, Plaintiff "has been the feature of several newspaper articles on Long Island and due to the Defendants Kirkham, Del Rio, and Fritz and their willfulness, they have interfered with future contractual relations with other school districts by tarnishing [her] reputation" and "a representative of the [District] has given potential future employers of [Plaintiff] a negative referral." (AC ¶¶ 61-62.)

School Board elections are held in May. In May 2008, Fritz was running for re-election and Helen Moss, whose daughter was denied a teaching position with the District, was a candidate for the Board. Moss and Fritz are officers of Defendant Residents for Better Schools. The night before the 2008 election, a newsletter arrived from Resident [sic] for Better Schools to the homes of every Brentwood resident, the subject of which was the impending election. The cover of the newsletter bore a photograph of the Plaintiff, next to a photograph of her father, George M. Talley, the President of the Board. Plaintiff did not give permission for her likeness to be used by Residents for Better Schools, Moss or Fritz. The brochure or newsletter reads:

"Enough is Enough! George Talley embarrassed our community by pushing to hire his daughter at all costs!" "Newsday blasts Talley for his blatant abuse of power in trying to BULLY Board Members into hiring his daughter." "Nepotism Charges split board - bid to create job for daughter of Brentwood school president falls short; lawyer hired to investigate board members who opposed move." "Our efforts should be put toward improving our schools not settling Talley lawsuits! The Talley lawsuit will undoubtedly cost the taxpayers well over $100,000! What a waste!" "Tell George Talley to STOP WASTING OUR HARD EARNED TAX MONEY ON FRIVOLOUS LAWSUITS!" . . . .

On or about May 20, 2008, Fritz and Helen Moss individually sent out an additional letter to the entire Brentwood community and addressed "Dear Voter" that reads:

"4. We lead by example and want to stop School Board [s]trife that started when George Talley insisted in hiring his daughter, a person who did not pass have [sic] the required test at the time of the hiring. SIMPLY PUT if I did not pass the New York State Bar Exam I could not represent clients. The same rules apply with teachers including George Talley's daughter." (AC ¶¶ 70-74 (emphasis in original).) According to Plaintiff these statements are "utterly false." (AC ¶ 74.)

The additional facts asserted in the proposed (second) amended complaint ("PSAC") shall be addressed to the extent necessary in connection with the motion to amend.

Discussion

I. Legal Standards

A. Motion to ...


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